State ex rel. Ellis v. Creech

Decision Date08 June 1953
Docket NumberNo. 43624,43624
Citation364 Mo. 92,259 S.W.2d 372
PartiesSTATE ex rel. ELLIS et al. v. CREECH.
CourtMissouri Supreme Court

Warren Turner, Springfield, Rendlen & Rendlen, Hannibal, for appellant.

Brevator J. Creech, Troy, for respondent.

HYDE, Judge.

Prohibition to prevent respondent Judge from enforcing a temporary injunction in the case of Raymond E. Ellis v. Ruth Ellis et al. pending in the Circuit Court of Lincoln County and directing him to strike this order from the records of the Court. The question for decision is whether respondent, after disqualifying in the case and being replaced by a transferred Judge, had jurisdiction to order a temporary in junction therein.

Relator Ruth Ellis was granted a decree of divorce from Raymond E. Ellis in 1951, in the Circuit Court of Lincoln County, after an agreement to settle property rights had previously been made by them. In this settlement it was agreed that Ruth Ellis would deed her interest in a 160 acre farm in Lincoln County to Raymond Ellis and that he would execute a trust deed on the farm securing annual payments to her of $3,000 for ten years; and make certain other cash payments in settlement of her property rights and his obligation of support. These deeds were made and relator F. D. Wilkins was named trustee in the trust deed. In September 1952, Raymond Ellis filed a suit in the Circuit Court of Lincoln County against relators and others to set aside the divorce decree, the property settlement and the trust deed on grounds of fraud and conspiracy. Respondent disqualified in this case and requested the Supreme Court to temporarily transfer a Circuit Judge to hear the case. This Court transferred Honorable Roy B. Meriwether, Judge of the 10th Judicial Circuit, for that purpose. We take notice from our records that Judge Meriwether has tried this case on the merits and dismissed plaintiff's cause; and that it is now pending here on appeal as No. 43683.

The $3,000 payment, due October 1, 1952, secured by the trust deed was not made and relators had the land advertised for sale on November 22, 1952. On November 19, 1952, Raymond Ellis filed a petition in his case, under the provisions of Section 526.040 (statutory references are to RSMo 1949, and V.A.M.S.), for a temporary injunction restraining the foreclosure. Respondent, who was then in Lincoln County (his residence), made an order on November 20, 1952, in chambers, that a temporary injunction be granted upon deposit of $3,000 with the Clerk in lieu of bond and this deposit was made. Relators contend that, after respondent disqualified in the case and another Judge was transferred to try the case, then respondent had no jurisdiction to make an order therein for a temporary injunction. We think this contention must be sustained.

In State v. Scott, 359 Mo. 631, 223 S.W.2d 453, 455, we held that a judge transferred by Supreme Court order, under Sec. 6, Art. V of the Constitution, V.A.M.S., to try a particular case, was 'clothed with authority to hear the case' although the regular judge of the circuit had entered an order disqualifying himself after previously calling in another judge, who did not try the case. More recently in Cantrell v. City of Caruthersville, Mo.Sup., 255 S.W.2d 785, 786, we held a judge, sitting at the request of the judge of another circuit under Sec. 15, Art. V, had jurisdiction of the case he was requested to try. We said: 'It makes no difference whether the request is to sit in one case or several cases or a whole term or a part of a term; or whether the regular judge of the circuit continues to hold court in the county.' This is certainly also true of a judge transferred by the Supreme Court under Sec. 6, Art. V. See State v. Scott, supra. We hold that Judge Meriwether had full jurisdiction and authority under the transfer order to try the case on the merits and to make any essential orders in it including the issuance of a temporary injunction. He was a special judge of the Circuit Court of Lincoln County and the 35th Judicial Circuit for the purpose of handling and disposing of that case.

Since Judge Meriwether had full and complete jurisdiction of the case, we think it follows that respondent did not have jurisdiction to order a temporary injunction and does not have jurisdiction to keep it in effect and enforce it. Respondent says the injunction was an ancillary order in the case and was not an act touching the merits or a final judgment, citing In re Pate, Mo.App., 107 S.W.2d 157, 163. There a judge, who had disqualified to try a disbarment case, made an entry of dismissal at the request of the committee which had filed the proceeding. The Court of Appeals held this dismissal was a voluntary nonsuit, not involving the merits of the case, which was a matter of right at that stage of the case, and was not a final judgment. No special judge had been selected to try the case and the Court said the judge, who had disqualified, could 'make such orders about the proceedings as might be required to have it properly disposed of in that court.' Likewise, in State ex rel. Nickerson v. Rose, 351 Mo. 1198, 175 S.W.2d 768, we said that a judge, disqualified because of relationship, could make routine orders incident to the disposition of the case and not affecting the merits, such as steps necessary to the selection of a special judge or to transfer the case to another circuit. See also State v. Bailey, 344 Mo. 322, 126 S.W.2d 224. Respondent also cites State v. Millsap, 310 Mo. 500, 276 S.W. 625, which held that a judge could receive an indictment against the defendant although disqualified on statutory grounds from sitting at his trial. Also cited are State ex rel. Harwood v. Sartorius, 355 Mo. 837, 198 S.W.2d 690; and State ex rel. Lentz v. Fort, 178 Mo. 518, 77 S.W. 741, but neither of these cases involve the question of the jurisdiction of a judge after disqualification and replacement to order a temporary injunction in the case.

An injunction is no mere routine order. An injunction 'is an...

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31 cases
  • State ex rel. Siegel v. Strother, 4
    • United States
    • Missouri Supreme Court
    • 9 Abril 1956
    ...where a court is proceeding in excess of its jurisdiction and something further is to be done pursuant thereto. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 375. Respondent next contends that prohibition does not lie because relators have an adequate remedy at law or no remedy......
  • Byrd v. Brown
    • United States
    • Missouri Court of Appeals
    • 6 Octubre 1982
    ...and further held, upon the authority of State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo.banc 1978) and State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372 (banc 1953), that having disqualified himself, Judge Moore was bound to surrender jurisdiction and all orders entered......
  • State ex rel. Leonardi v. Sherry
    • United States
    • Missouri Supreme Court
    • 1 Julio 2004
    ...Liszewski, 411 S.W.2d 84, 86 (Mo.1967) (declaratory judgment remedy is sui generis and derives from equity); State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 374 (1953) (injunction is an equitable remedy and is the "most important process issued by courts of equity"). Damages and,......
  • Byrd v. Brown
    • United States
    • Missouri Court of Appeals
    • 27 Febrero 1981
    ...Auto. Ins. Co. v. Murray, 438 S.W.2d 300 (Mo.App.1969).8 State ex rel. Peabody Coal Co. v. Powell, supra, n. 7; State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372 (banc 1953).9 As the case had been transferred to Division I, this court need not consider whether or not a judge may und......
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